LAWYERS representing Danté van Wyk, the man identified as being subjected to EFF leader Julius Malema’s ‘inciteful’ remarks, say they will oppose any attempt challenging the  Equality Court’s  hate speech finding against the politician. 

The court found that Malema’s remarks, made in response to an incident at Brackenfell High School, amounted to hate speech and showed a clear intent to incite harm and promote or propagate hatred. The remarks were delivered during the EFF’s 3rd Provincial People’s Assembly on October 16, 2022.

Reacting to the Equality Court outcome, the EFF announced that it intends to challenge the ruling, calling it a “grave distortion” of history, philosophy, and political speech in a democratic society.

“Danté is very happy with the outcome. Freedom of speech is an important cornerstone of our democracy, but it must be limited to exclude inflammatory, hateful remarks that incite violence. This judgement vindicated limitations set on freedom of speech. This judgement does not only affect Danté, but is good for the whole country. Any application for leave to appeal will be opposed. We believe the judge made the right decision and there is no prospect that a different court would arrive at a different decision,” said Van Wyk’s lawyer, Millie Westley.  

The South African Human Rights Commission (SAHRC), which was the other complainant in the matter said Wednesday’s judgement reaffirmed that freedom of expression, while fundamental, does not extend to advocacy of hatred that constitutes incitement to cause harm, particularly where such statements were made by persons in positions of power or influence.

“The Equality Court rejected arguments that the statements were merely political commentary or metaphorical in nature, finding instead that they amounted to direct, unambiguous incitement to violence on the basis of a prohibited ground, cloaked in ideological language. The judgement recognised the danger posed when public figures and political leaders use rhetoric that undermines human dignity and social cohesion. The Commission notes with appreciation the Equality Court’s careful consideration of the context, ideological framing, and effect of the impugned statements,” the SAHRC said. 

Melusi Xulu, managing director of Donda Attorneys said the matter could end up in the country’s apex court.

“(Based on the Promotion of Equality and prevention of unfair discrimination Act and freedom of speech in the Constitution) the court needed to decide was that (speech) literal or was it a political speech. The EFF is adamant this was a political speech based on the history of the country and the courts ignored the history of the country so to speak in terms of how black people were fighting resistance. So what they are saying is what Malema was saying was not literally meaning revolutionaries must kill but it was to fight against the system of apartheid which they believe still remains. 

“So these are the issues that remain, whether it was a literal interpretation they must kill or whether it was a political stance which they say as the EFF, is covered by freedom of expression in the Constitution. Now the fact that they are appealing, I believe the matter will end up in the Constitutional Court in the years to come if not sooner, then the courts will then again interpret whether what the EFF was saying was hate speech or just a political speech based on the foundation of the history of the country when fighting apartheid and racism.”

Cape Times

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